UNIVERSITY  OF  CALIFORNIA 


Robert  Ernest   Cowan 


Wo.  3,699. 

IN  THE  SUPREME  COURT 

OF   THK 

STATE  OF    PA.LIFORNIA. 


The  City  and  County  of  San  Francisco 


^Plaintiff  and  Appellant,, 


The  Spring  Valley  Water  Works, 


Defendant  and  Respondent. 


Respondent's  Petition  for  Re-hearing. 


A.  CAMPBELL,  SR., 

Of  Counsel. 


CHAS.  N.  FOX, 

Alivrnny  for  Eespondent. 


AND  ARGUMENT  OF 

S    M.  WILSON,  AND 

J.  P.  HOGE, 

Of  Counsel. 

SAN    FRANCISCO: 
JOS.  WINTERBURN  AND  COMPANY,  PRINTERS  AND  ELECTROTYPERS, 

417  Clay  Street,  between  Sansome  and  Battery, 

.873. 


Iff  THE  SUPREME  COURT 


S 


C 


TATE   OF       ALIFORNIA, 


CITY   AND    COUNTY   OF  SAN 
FRANCISCO, 

Plaintiff  and  Appellant, 

Vto. 

SPRING  VALLEY  WATERWORKS, 

D"ft».  and 


Petition   of   Respondent    for  Rehearing. 

Respondents  respectfully  petition  the  Court 
for  a  rehearing  in  this  cause,  on  the  grounds  and 
for  the  reasons  set  forth  in  the  points  and  argu-. 
ments  following,  and  hereto  annexed. 

We  desire  by  way  of  preface  to  our  regular 
points  to  say  that  at  the  hearing,  a  brief  in  reply 
was  filed  by  John  F.  Swift,  Esq.,  of  Counsel  for 
Plaintiff,  to  which  we  have  had  no  opportunity 
to  respond,  and  as  it  almost  entirely  ignored  the 
law  upon  which  the  Court  had  intimated  the  case 


must  iatV,  ifeSotulfi  not  afford  to  devote  much  of 
the  brief  hour  given  for  ornl  argument  to  a  con- 
sideration of  its  propositions. 

It  is  full  of  glittering  generalities,  purporting 
to  be  based  upon  historical  facts;  nearly  all  of 
which  are  outside  the  records  of  this  case,  and 
verv  many  of  which  we  are  prepared  to  show 
partake  largely  of  fiction.  These  statements  not 
being  in  the  record  and  not  seeming  to  us  perti- 
nent upon  a  law  argument,  we  have  not  supposed 
they  would  enter  into  the  consideration  of  the 
Court,butif  they  have  been,  or  are  to  be  consider- 
ed as  contributing  towards  a  solution  of  the  legal 
rights  of  these  parties,  we  desire  an  opportunity 
to  reply  to  them;  an  opportunity  which  should 
Joe  granted  for  the  reason,  that  the  line  of  argu- 
ment adopted  by  Mr.  Swift  is  entirely  new  to  the 
case  (  if  not  new  in  any  case,)  and  was  broached 
for  the  first  time  at  the  very  close  of  the  case. 

I. 

.  We  think  that  the  Court  erred  in  holding  that 
the  questions  arising  on  this  appeal,  except  that  of 
former  recovery  are  not  precisely  the  same  as 
those  which  were  adjudicated  by  this  Court  on  the 
former  appeal  (  39  Cal.  473  ).  The  Court,  in  its 
recent  decision  says  : 

;'  On  the  former  appeal,  the  only  questions  be- 
"  fore  us  were  :     First,  whether    the   Court  below 


•"  properly  refused  to  grant  a  temporary  injunc- 
*'  tion  ;  second,  whether  the  Court  erred  in  sus- 
"  taining  the  demurrer  to  the  complaint.  On  the 
"  first  point,  we  affirmed  the  order  denying  the 
4 1  injunction,  and  decided  that  inasmuch  as  the 
'"  complaint  contained  no  sufficient  averment  to 
"  the  effect  that  water  has  been  introduced  into 
•"the  City  and  County  by  any  other  person,  it  was 
"  not  incumbent  on  Ensign  and  his  associates,  or 
"  their  successors,  until  the  happening  of  that 
li  event,  to  furnish  water  free  of  charge  for  general 
"  municipal  purposes,  exclusive  of  that  required 
u  for  the  extinguishment  of  fires." 

This  is  a  statement  of  the  former  decision  upon 
that  point,  as  we  understood  it,  and  we  submit 
that  the  point  was  directly  involved  and  necessari- 
ly decided  on  the  former  appeal  ;  that  such  decis- 
ion necessarily  involved  a  consideration  of  all  the 
statutes  and  ordinances  bearing  upon  the  question 
of  th'e  rights  of  plaintiff  and  the  duties  of  defend- 
ant, as  affected  by  the  facts  as  then  before  the 
Court,  and  that  so  long  as  the  facts  remain  the 
same,  that  decision  is  and  ought  to  be  held  to  be 
-res  adjudicata.  Are  the  facts,  as  presented  on 
this  appeal,  different  from  those  presented  at  the 
former  hearing  ?  It  will  only  be  necessary,  for  the 
purposes  of  this  petition,  upon  this  point,  to  see 
what  the  averments  of  the  two  complaints  were 
with  reference  to  the  introduction  of  water  into 
the  City,  by  the  San  Francisco  City  Water  Works- 


'1 

The  complaint  on  the  foinior  appeal,  on  this  sub- 
ject read  as  follows  : 

"  That  the  said  Corporation  known  as  the  San 
"Francisco  City  Water  Works  was  by  the  said 
fi  plaintiff  granted  various  rights  and  privileges,. 
"  and  the  same  were  granted  under  and  in  pursu- 
"  ance  of  Section  1  of  an  ordinance  of  the  City  and 
"  County  of  San  Francisco,  which  was  passed  on  the 
11  29th  day  of  August  1859  entitled  order  No.  172 
"  amendatory  of  order  Xo.  46  and  repealing  order 
"  No.  65  and  order  No  92,  in  relation  to  the  San 
"  Francisco  City  Water  Works  ;  which  said  order 
"  wa's  ratified  and  confirmed  by  an  Act  of  the 
"  Legislature,  erTtitled  '  an  Act  to  ratify  and  con- 
"  firm  order  Xo.  172  of  the  Board  of  Supervisors 
"  of  the  City  and  County  of  San  Francisco,'  ap- 
proved April  12th  1860  which  said  Section  1  of 
"  said  ordinance  so  ratified  is  herewith  attached, 
"  marked  Exhibit  C.  and  made  a  part  of  this  com- 
"  plaint, 

"  That  under  and  in  pursuance  of  said  sec- 
"  tion,  the  rights  and  privileges  granted  to  the 
"  said  San  Francisco  City  Water  Works  were  ac- 
"  cepted  and  used  by  the  said  corporation  and 
"  said  corporation  did  introduce  pure  fresh  water  into 
11  the  City  and  County  of  San  Francisco,  through  lands 
"  </"!med  as  belonging  to  the  City  and  Comity  of  San 
*'  Francisco  (this  plaintiff )  in  pursuance  of  said  section." 


The  complaint  on  the  last  appeal  contained  the 
same  matter  and  also  had  the  following  para- 
graph which  constituted  the  amendment  : 

"  That  heretofore,  to  wit :  between  the  said  15th 
"  day  of  June,  A.  D.  1857,  and  the  first  day  of 
"  September,  A.  D.  1858,  the  said  Corporation 
"  known  as  the  San  Francisco  City  Water  Works 
"  was  by  the  statutes  of  this  State,  and  the  orders 
"  and  ordinances  of  the  Board  of  Supervisors  of 
"  the  City  and  County  of  San  Francisco,  in  that 
"  behalf  duly  passed  and  approved,  authorized 
"  and  required  to  introduce  into  said  City  and 
"  County  pure,  fresh  water,  for  fire,  municipal  "and 
"  other  purposes  ;  which  authority  last  aforesaid, 
"  and  the  rights  thereunder,  were  accepted  by  the 
"  corporation  last  aforesaid  ;  that  while  the  au- 
"  thority  last  aforesaid  continued,  to  wit:  on  the 
"  16th  day  of  September,  A.  D.  1858,  the  corpo- 
"  ration  last  aforesaid  did  introduce  into  said  City 
"  and  County  pure,  fresh  water *for  fire,  municipal 
"  and  other  purposes,  and  continued  from  that 
"  time'  to  introduce  water  as  last  aforesaid  into 
"  said  City  and  County,  until  the  time  of  convey- 
"  ance  by  the  corporation  last  aforesaid  unto'the 
"  defendant  herein,  as  hereinafter  stated,  and  du- 
"  ring  that  time  had  authority  to  introduce  water 
"  as  last  aforesaid/'  (  Trans,  folios  5  and  6.) 

To  these  three  paragraphs,  o'f  the  complaint, 
the  first  two  also  standing  in  the  former  complaint, 


we  beg  leave  to  call  the  special  attention  of  the 
Court.  The  facts  stated  in  them,  have  at  all  times 
stood  admitted.  We  submit  that  they  do  not 
differ,  in  any  essential  particular,  material  to  the 
cause  of  plaintiff.  The  first  averred  postively, 
that  water  was  introduced  under  and  in  pursuance 
of  an  order  passed  in  August  1859,  This  was  af- 
ter the  date  of  the  passage  of  both  the  Ensign 
acts,  so  that  there  can  be  no  question  but  that  if 
the  San  Francisco  City  Water  Works  can  be  held 
to  be  the  some  "  other  person  or  persons  " 
contemplated  by  the  Legislature  in  the  passage  of 
those  acts,  the  fact  thus  averred  showed  that  it 
was  done  "  thereafter  "  to  wit:  after  the  passage 
of  those  acts.  The  amendment  is  inconsistent 
with  the  original  complaint  (  which  still  stands  ) 
in  that  it  fixes  the  precise  date  of  the  introduction, 
and  fixes  it  at  a  time  prior  to  the  date  of  the  only 
one  of  the  Ensign  acts  under  which  Defendants 
have  any  power  td  introduce  water  into  said  City 
and  County. 

We  hardly  know  whether  to  understand  the 
Court,  in  its  late  opinion,  as  intimating  that  we 
practiced  a  deception  upon  the  Cojirt  on  the 
former  appeal ,  in  the  position  which  we  took  in 
regard  to  the  averments  of  the  complaint  or  not. 
We  can  only  disavow  any  intention  to  practice  any 
such  deception,  even  if  we  could  have  done  it,  and 
affirm  our  continued  belief  that  the  position  then 


taken  by  us,  was  correct  as  to  that  complaint,  and  that 
in  our  judgment  the  same  position  is  correct  as  to 
the  present  one.  Xeither  are  we  willing  to  believe 
that  the  Court,  in  making  its  former  decision, 
either  by  inadvertence  or  through  the  misleading 
of  counsel  for  respondent,  overlooked  those  two 
important  paragraphs  of  the  complaint;  particu- 
larly so,  when  attention  was  called  to  them  in  the 
able  brief -of  counsel  for  appellant,  in  his  Analysis 
of  the  Complaint. 

And  we  respectfully  submit,  th'at  there  is  no  in- 
consistency in  the  positions  taken  by  us  on  the 
two  appeals.  Our  position  on  the  first  appeal  was 
that  the  complaint  did  not  show  that  the  "  there- 
after "  mentioned  in  the  Statute  had  ever  come; 
*- 

that  it  did  not  show  that  water  had,  since  the  date 
of  the  Ensign  Franchise,  been  introduced  into  the 
City  by  any  "  other  person  or  persons."  Our  po- 
sition at  that  time  was  based,  not  upon  the  fact 
that  it  was  not  averred  that  the  San  Francisco 
City  Water  'JVorks  had  introduced  water  into  the 
City  after  the  date  of  our  franchise,  but  upon  the 
single  and  sole  proposition  that  the  San  Francisco 
City  Water  Works  was  not  "some  other  person  or 
persons,"  within  the  meaning  of  the  statute,  for 
the  reason  that  it  was,  at  the  date  of  our  franchise, 
a  corporation  in  existence,  having  the  right  to  in- 
troduce water,  engaged  in  the  construction  of  its 
works,  known  to  the  Legislature,  and  its  rights 
protected  by  the  provisions  of  our  act.  On  the 


8 

second  appeal,  we  took  the  same  position  as  to  the 
amended  complaint.  This  was  done  on  the  ground 
already  stated,  and  on  the  further  ground  that  it 
now  appears  that  the  San  Francisco  City  Water 
Works  was  actually  introducing  water  into  the  City 
at  the  date  of  the  only  Ensign  Act,  which  author- 
izes us  to  introduce  water  there  at  all.  This  seems 
to  us  tlie  strongest  kind  of  evidence  that  the  Leg- 
islature did  not  intend  that  the  rights  or  duties  of 
Ensign  and  his  associates  should  be  affected,  en- 
larged, or  restricted  by  the  acts  of  the  San  Fran- 
cisco City  Water  Works. 

We  did  not  dwell  at  length  upon  this  point,  in 
our  last  brief,  for  the  reason  that  we  believed  that 
the  proposition  was  clearly  understood  and  affirmed 
in  the  former  decision,  and  that  a  simple  allusion 
to  it  was  sufficient.  But  it  was  fully  presented  by 
our  able  colleague,  in  his  oral  argument,  while  we 
devoted  ourselves  to  the  work  of  trying  to  show 
the  Court  that  the  new  matter  in  the  complaint 
presented  no  new  fact  for  the  Court  to  pass  upon. 

Again,  the  Court  in  its  late  decision  seems  to 
hold  that  though  the  former  complaint  may  have 
contained  a  sufficient  averment,  that  water  had  been 
introduced  into  the  city  by  the  San  Francisco  City 
Water  Works  after  the  date  of  the  Ensign  fran- 
chise, yet  respondents  are  estopped  from  claiming 
that  it  did,  because  their  counsel  on  the  argument 
claimed  that  it  did  not.  This  is,  to  us,  a  new  ap- 


9 

plication  of  the  doctrine  of  estoppel.  We  con- 
cede that  parties  may  be  estopped  \yy  their  plead- 
ings, but  we  never  before  learned  that  their  rights 
could  be  lost  by  way  of  estoppel,  by  the  argu- 
ments of  counsel.  And,  besides  it  was  not  claimed 
by  any  of  the  counsel  for  respondent,  that  there 
was  no  sufficient  averment  of  the  introduction  of 
water  by  the  San  Fiancisco  City  Water  Works: 
we  only  claimed  that  there  was  no  averment  that 
water  had  been  so  introduced  by  any  "  other  per- 
son or  persons."  within  the  meaning  of  the  statute. 

II. 

The  new  matter  in  the  amended  complaint,  even 
if  it  does  state  a  new-fact,  cannot  now  be  consid- 
ered by  the  Court.  It  appears  from  the  face  of 
the  complaint,  as  amended,  that  the  fact  stated  in 
the  amendment  was  one  that  arose  long  before  the 
commencement  of  this  suit;  presumptively  it  was 
within  the  knowledge  of  plaintiff  at  the  time  of 
the  commencement  of  this  action,  and  nothing 
appears  in  the  complaint  to  rebut  that  presump- 
tion. It  was,  then,  a  fact  which  could  have  been 
stated  and  passed  upon  at  the  original  hearing,  and 
one  bearing  directly  upon  the  important  question 
then  before  the  Court,  and  upon  which  the  Court 
was  compelled  to  pass.  If  it  was  not  stated,  it 
was  the  fault  of  plaintiff,  and  not  of  the,Court, 
and  the  decision  of  the  Court  became  and  was 
o 


10 

res  adjixli-cata  as  to  that  fact,  the  same  as  if  it  had 
been  stated. 

We  understand  your  Honors,  in  your  late  decis- 
ion, to  hold  that,  upon  the  facts  as  then  presented, 
the  former  decision  is  res  adjudicata  upon  the  ques- 
tion of  the  right  of  the  city  to  water,  free  of 
charge,  for  municipal  purposes,  other  than  the  ex- 
tinguishment of  fires.  If  so,  then  the  same  rule 
applies  as  against  any  state  of  facts  which  could 
have  been  presented  at  that  time. 

"  An  adjudication  is  final  and  conclusive,  not 
only  as  to  the  matter  actually  determined,  but  as 
to  every  other  matter  which  the  parties  might 
have  litigated,  and  have  had  decided,  as  incident 
to,  or  essentially  connected  with,  the  subject  mat- 
ter of  the  litigation,  and  every  matter  coming 
within  the  legitimate  purview'  of  the  original  ac- 
tion, both  in  respect  to  matters  of  claim  and  de- 
fence." 

Harris  vs.  Harris.  36  Barb.  88. 

Clemens  *x  Clemens,  37  X.  Y.  59. 

This  action  is  eminently  one  to  determine  the 
rights  of  the  plaintiff  in  certain  property  of  the 
defendant.  The  Court  in  its  former  decision  passed 
upon  those  rights,  as  they  then  existed,  upon  all 
points  except  the  one  of  former  adjudication. 
That  decision  was  final,  until  the  plaintiff  shows 
some  right,  or  some  fact  giving  a  right  which  did 
not  exist  at  the  time  of  the  former  decision.  Xo 


11 

attempt  is  made  to  do  this.  The  most  that  can  be 
claimed  is  that  by  the  amendment  plaintiff  has  at- 
tempted to  set  up  a  fact  which  existed  at  the  time 
of  the  former  decision,  but  which  he  says  was  not 
pleaded. 

•'  To  avoid  the  estoppel,  the"  losing  party  must 
show  some  other  right  *  *  *  than  that  which 
he  had  when  the  estoppel  was  created.  He  is 
bound  to  show  such  other  right,  because  his  form- 
er claim  of  right  was  determined  by  the  recov- 
ery." 

Marshall  vs.  Shatter,  32  Gal.  196. 

The  subject  matter  of  the  action,  and  the  fact 
in  issue,  was  the  right  of  plaintiff  to  water  from 
the  works  of  defendant,  free  of  charge,  for  general 
municipal  uses.  Plaintiffs  presented  such  evidence 
in  support  of  that  fact  as  they  saw  fit,  and  they 
are  bound  by  the  determination  of  that  issue,  so 
far  as  it  is  affected  by  any  evidence  then  existing. 

Capertoii  vs,  Schmidt,  26  Cal.  479,  and  cases 
there  cited. 

Jackson  vs.  Lodge,  36  Cal.  28. 

'•The  discovery   of    new   evidence,  not  in  the 
power  of  the  party  at  the  former  trial,  forms  no 
exception  to  the  rule  in  relation  to  estoppels." 
Kilheffer  rs/Kerr,  17  S.  and  R,  319. 

The  former  decision  is  final  as  to  the  subject 
matter  then  in  issue,  ;nid  as  to  every  other  matter 


12 

which   the  parties  might  then  have  litigated  and 
have  determined. 

Gray  et  al.  vs.  Doherty  et  al..  25  Cal.  272. 

Under  the  rule  laid  down  in  Emerson  vs.  San- 
some,  41  Cal.  552,  the  introduction  of  water  by 
some  other  person  or  persons,  after  the  date  of  the 
former  decision,  would,  according  to  the  terms  of 
that  decision,  have  given  the  plaintiff  a  new  right, 
and  avoided  the  estoppel.  But  there  is  no  pre- 
tence of  suclj,  a  fact,  or  of  any  fact  giving  a  right 
subsequent  to  the  date  of  that  decision,  not  pos- 
sessed at  the  time,  and  the  decision  is,  therefore, 
final  upon  that  point. 

Thompson  vs.  McKay,  41  Cal.  266. 

Upon  the  principle  laid  down  in  Taylor  rs.  Castle, 
42  Cal.,  367,  if  the  new  matter  set  up  in  this  com- 
plaint would  have  sustained  a  decision  in  favor 
of  plaintiff  at  the  former  hearing,  then  the  former 
decision  is  final  and  has  become  the  law  of  the 
case. 

III. 

And  we  ask  your  Honors  also  to  again  consider 
the  effect  of  the  Amendatory  Act  of  1859.  We 
have  carefully  studied  your  Honors  late  decision, 
and  reviewed  our  own  position  upon  that  point,  and 
it  is  in  no  spirit  of  captiousness,but  with  a  realizing 
sense  of  the  weight  due  to  such  an  authority,  and 
of  our  duty  to  our  client,  that  we  again  approach 
that  subject.  After  a  full  review  of  the  question, 


13 

we  are  unable  to  see  how,  under  our  Constitution, 
it  can  be  held  that  the  right  of  the  City  to  take 
water  from  these  works,  or  the  duty  of  the  defend- 
ant to  furnish  it,  is  given  or  prescribed  by  an  Act 
which  is  to  be  construed  as  dating  from  1858  ;  or 
why  the  case  of  Billings  vs.  Harvey  (6  Cal.  383)  is 
not  directly  in  point. 

The  Section  3,  under  which  this  right  is  claimed, 
or  this  duty  imposed,  was  passed  in  1858.  it  is 
true.  But  what  does  it  amount  to  if  it  is  left  to 
stand  alone  ?  Strike  out  section  one  of  the  same 
Act  and  what  is  there  left  for  any  oth'er  part  of 
the  Act  of  1858  to  operate  upon  ?  With  section 
one  repealed,  the  balanco  of  the  Act  is  all  a  nuli- 
ty — it  all  falls  to  the  ground,  is  worse  than  waste 
paper.  It  then  becomes  a  senseless  jumble  of 
words,  appearing  upon  its  face  to  impose  duties, . 
obligations  and  restrictions  upon  the  enjoyment 
of  a  franchise  which  has  no  existence.  Section 
three  in  terms  gives  the  Chief  Engineer  the  right 
to  tap  any  pipes  so  laid  down,  and  receive  water 
therefrom.  How  laid  down  ?  Under  section  one. 
With  section  one  repealed — all  the  balance  of  the 
Act  together  gives  no  power  to  lay  down  any 
pipes ;  hence  the  right  to  tap  becomes  an  empty 
right,  for  there  is  nothing  to  be  taped.  And  after 
the  happening  of  a  certain  event  which  it  was 
presumed  might  happen  in  the  future,  as  your 
Honors  hold  (although  we  do  not  wish  to  be  im- 


14 

derstood  as  admitting  it)  it  would  be  the  duty  of 
Ensign  and  bis  associates  to  furnish  their  quoto  of 
whatever  water  might  be  produced  by  them  under 
the  franchise  granted  by  that  Act.  But  with  sec- 
tion one  repealed,  there  <s  no  franchise,  and  the  im- 
posing of  the  duty  becomes  a  vain  act. 

Is  section  one  of  the  Act  of  1858  repealed? 
Your  Honors  say  that  it  was  reenacted  by  the  Act 
"  of  April  llth,  1859,  in  totidem  verbis,  with  the 
"  exception  .that  the  time  limited  for  laying  down 
"  the  .pipe  was  to  be  two  years  from  the  passage  of 
u  that  Act  instead  of  one  year  from  the  passage  of 
"  the  former  Act."  Granted,  and  what  is  the  con- 
sequence ?  The  Court  says  ;i  its  effect  was  merely 
to  extend  the  time.''  To  extend  the  time,  o'r  rath- 
er tog 'ant  a  new  period  within  which  to  lay  down 
pipes  which  it  had  been  hoped  would  be  laid  under 
the  first  Act,  we  concede  was  one  of  the  effects  of 
this  new  enactment.  Under  the  ordinary  con- 
struction of  statutes,  this  extension  of  time  might 
have  been  its  only  effect.  But  we  must  not  for- 
get that  we  are  acting  under  a  constitutional  pro- 
vision different  from  that  under  which  this  ordin- 
ary rule  of  construction  has  grown  up.  This  new 
rule,  and  the 'reason  for  it  cannot  be  better  ex- 
pressed than  was  done  in  Billings  vs.  Harre>/  0  Cal. 
383,  and  which  we  here  repeat: 

••  According  to  the  ordinary  construction  of 
statutes,  a  mere  amendment  would  not  have  the 


15 

effect  of  changing  the  operations  of  the  Act 
amended  as  to  time,  except  so  far  as  the  alteration 
itself  is  concerned;  but  under  our  constitution  a  new 
r i il<'  /'.s  wl opted.-  for  the  amendment  of  statutes,  totally  diff- 
erent from  that  H'/iich  had  before  prevailed.  Section  25 
of  Article  IV  ordains  that  'no  law  shall  be  revised  or 
amended  by  reference  to  its  title;  but  in  such 
case  the  act  revised  or  section  amended  shall  be 
re-enacted  and  published  at  length.' 

"  From  tli'i*  language  it  appears  too  clear  to  require 
argument,  that  if  a  statute,  or  section  of  a  statute,  is 
re-enacted,  it  is  totally  inconsistent  with  the  idea  that  the 
old  statute  or  section  still  remains  in  force,  or  has  vitality 
for  tiny  purport'  whatever. 

il  1/ie  re-enactment  <•/•< ."/^>-  anew  the  rule  of  action, 
mill  eraii.  if  there  were  not  the  slightest  difference  of 
phraseology  of  the  two,  the  latter  alone  can  be  referred 
to  an  f/if.  In  a-.  ,i,-ul  the  former  stands  to  all  intents 
(Hid  i/'ii'iioses  as  if  absolutely  and  expressly  repealed." 

And  we  submit  that  this  decision  is  exactly  in 
point,  in  determining  whether  or  not  section  one 
of  the  Act  of  1858  is  repealed.  Let  us  see.  A 
Statute  of  Limitations  was  passed  in  1850.  In 
1855.  an  Act  was  passed — amendatory  of  the  for- 
mer act — -precisely*  as  in  this  case.  By  the 
Act  of  1855,  section  six  of  the  Act  of  1850  was 
'T( --enacted  in  fotidem  verbis"  with  the  addition  of  a 
proviso  which  the  Court  in  considering  the  case 
s  ays  ••  in  no  manner  affects  the  operation  of  the 


16 

section  in  the  present  case,  if  it  is  still  in  force." 
Thus  it  will  be  seen  that  it  would  be  difficult  to 
find  two  cases  where  the  lines  are  drawn  nearer 
parallel  than  in  Billings  vs.  Harvey  and  the  case  at 
bar,  where  the  question  is,  what  was  the 
effect  of  the  amendment  upon  the  section  amend- 
ed. And  the  Court  held,  in  the  clearest  of  Ifin- 
guage,  that  section  six  of  the  Act  of  1850  was  re- 
pealed, and  the  section  as  re-enacted  in  1855.  even 
if  there  was  no  difference  in  the  phraseology,  could 
alone  be  referred  to  as  the  /""'. 

This  decision  has  stood  as  the  unquestioned  law 
of  this  State  for  seventeen  years.  It  was  affirmed 
by  the  same  Court  in  the  following  year  ( EMuy* 
vs.  *HaU,  7  Gal.  3)  and  again  in  1860  in  Morton  /:*. 
Folger,\b  Cal.  284,  where  the  Court,after  referring 
to  Billings  vs.  Harvey  say  ''the  most  cogent  reasons 
exist  for  adherence  to  the  decision  there  made''- 
and  again  in  1864,  in  Cl<u*e  vs.  Huber,  25  Cal.  596, 
the  Court  re-affirms  Billings  vs.  Harvey,  and  the 
other  cases,and  say,  "  it  is  now  too  late  to  question 
the  correctness  of  the  rule  established  by  those 
decisions."  If  it  was  too  late  in  1864  to  question  a 
construction  of  the  constitution  which  had  been 
promulgated  by  the  Conrt  of  last  resort,  and  pre- 
vailed for  only  eight  years,  ought  we  not  to  hesi- 
tate before  we  reverse  that  construction  after  it 
has  prevailed  for  seventeen  years  '\ 


17 

What  follows  ?  Simply  that  the  Franchise 
granted  to  Ensign  and  his  associates  by  section  one 
of  the  Act  of  1858  has  been  repealed,  absolutely 
nidified — it  has  no  existence  for  any  purpose.  Xo 
franchise  was  granted  by  or  under  any  other  part 
of  that  Act,  and  the  restrictions  imposed,  and 
rights  giyen  by  section  three,  and  all  the  other 
sections  of  that  Act  become  inoperative  and  void, 
for  the  want  of  an  object  upon  which  to  act. 

IV. 

Always  willing,  as  we  have  been,  whether  re- 
quired by  law  or  not,  to  furnish  water  free  of 
charge  for  the  extinguishment  of  fires,  and  confi- 
dent that  never  since  the  date  of  our  Franchise, 
had  water  been  introduced  into  the  City  by 
any  other  person  or  persons,  we  have  never  seri- 
ously contended  that  the"  provisions  of  section 
three  of  the  Act  of  1858  did  not  apply  to  us; 
but  have  contended  ourselves  with  the  proposition 
that  if  they  did  apply,  it  must  be  as  if  passed  in 
1859.  Unless  so  construed,  no  application  could 
be  made  of  those  provisions,  for  reasons  above 
stated. 

But  we  now  submit  the  proposition,  and  in- 
sist that  it  is  the  law — that  there  is  no  section 
three  to  any  Franchise  under  which  this  defend- 
ant, as  the  successor  of  Ensign  and  his  associates, 
is  or  ever  has  been  introducing  water  into  the 
3 


18 
• 

City  of  San  Fraiu.-isco.  That  the  only  Franchise 
to  Ensign  and  his  associates  and  successors  now 
in  existence  is  the  one  found  in  the  Act  of  April 
11,  1859.  (Exhibit  B.  to  complaint.  Trans,  it'.  35 
to  38.)  That  this  franchise  is  free  from  any  and 
every  condition  and  restriction,  except  that  three 
thousand  feet  of  pipe  shall  be  laid  within  two 
years  from  the  date  of  the  Act.  and  water  fur- 
nished to  such  citizens  along  the  line  as  may 
elect  to  take  the  same,  and  the  balance  of  the 
pipes  be  laid  as  soon  thereafter  as  practicable  ; 
and  that  nothing  in  it  shall  inure  to  or  affect  the 
rights  and  privileges  of  the  Mountain  Lake  Water 
Company,  or  the  San  Francisco  City  Water  Works 
Company.  This  is  the  only  Act  now  in  force, 
granting  any  franchise  to  Ensign  and  his  associates, 
and  these  are  the  only  restrictions  imposed  upon 
the  franchise  by  that  or  any  subsequent  Act.  The 
franchise  of  1858  being  repealed,  the  restrictions 
imposed  upon  *£,  fall  with  it,  whether  repealed  in 
express  terms  or  not.  They  cannot  be  tacked  on 
to  a  franchise  granted  by  a  subsequent  Act,  unless 
it  is  done  by  legislative  enactment,  and  such  is  not 
the  case  here. 

"  Xo  law  shall  be  revised  or  amended  by  refer- 
ence to  its  title,  but  in  such  case  the  Act  revised, 
or  section  amended,  shall  be  re-enacted  and  pub- 
lished at  length/' 

Const,  of  Cal.,  Art. -4,  See.  25. 


19 

The  Act  of  1859  was  not  an  Act  to  amend  a 
section  of  the  Act  of  1858,  but  it  was  an  act  to 
amend  the  whok  Act  of  1858  (Trans,  f.  35.)  It 
was  therefore  the  duty  of  the  Legislature  to  re-en- 
act and  publish  at  length  all  that  it  intended  to 
keep  in  force  of  the  Act  of  1858.  A  Court  will 
hardly  assume  that  the  Legislature  neglected  a 
constitutional  duty,  unless  they  find  in  its  work 
some  such  incompleteness  or  imperfection  as  ren- 
ders the  Act  nugatory,  or  that  from  error  in  judg- 
ment or  some  other  cause,  the  Legislature  has 
passed  an  Act  which  in  its  terms  or  by  necessary 
implication,  violates  the  constitution.  It  will 
hardly  be  contended  that  the  Act  of  1859  is  in- 
complete in  itself,  or  that  it  is  in  any  respect .  un- 
constitutional. It  re-enacts  and  publishes  at 
length  section  one  of  the  Act  of  1858,  wholly 
omits  all  reference  to  the  other  sections,  and 
gives  us  as  an  entire  new  section,  numbered  2 ; 
the  restriction  found  in  section  7~of  the  old  Act. 
It  thus  gives  us  an  Act  complete  in  itself,  and  re- 
peals so  much  of  the  Act  of  1858  as  to  leave  the 
balance  inoperative  and  inefectual,  and  does  not  re- 
enact  it. 

The  municipality  of  San  Francisco  does  not 
therefore  possess  any  more  right,  power  or  control 
in  or  over  the  property  of  this  defendant,  than  of 
any  other  person  whomsoever. 


20 

At  first  blush  it  might  appear  that  to  carry  the 
rule  to  the  extent  here  claimed,  would  endanger 
the  vitality  of  other  statutes  which  have  been 
supposed  to  be  valid  laws.  But  we  think  not.  It 
is  not  often  that  we  find  a  statute  of  many  sections, 
where  the  whole  vital  part  of  ft  is  found  in  one 
section,  so  that  that  one  may  be  re-enacted  by  way 
of  amendment,  and  become  a  complete  law  in  it- 
self, leaving  all  the  others  out.  Nor  it  is  often  that 
by  striking  one  section  out  of  nine,  as  in  this 
case,  all  the  rest  are  left  so  imperfect  as  to  become 
inoperative  and  void.  The  fact  that  such  was  the 
result  in  this  case  rendered  it  unnecessary  in 
passing  the  Act  of  1859,  to  make  any  allusion  to 
the  remaining  sections  of  the  Act  of  1858,  unless 
it  was  intended  to  re-enact  them. 

Again  it  is  the  province  of  the  Court,  not  to 
make  laws,  but  to  declare  what  is  the  law  in  a  given 
case,  without  reference  .to  the  consequences  in 
any  other  case.  And  we  are  urging  no  new  prin- 
ciple—we are  only  urging  the  Court  to  adhere  to 
to  an  old  one.  Ever  since  the  state  was  organ- 
ized, the  laws  have  been  made  in  the  light  of  this 
constitutional  provision,  and  for  seventeen  years 
they  have  been  made  in  the  light  of  this  construc- 
tion of  the  constitution. 

As  to  the  consequences  in  this  particular  case, 
they  would  be  simple,  fair  and  'just.  The  effect 
would  be  simply  to  declare  that  this  defendant  is 


21 

the  owner  of  a  franchise,  granted  by  the  Legisla- 
ture for  the  purpose  of  inducing  a  combination  of 
private  capital  to  create  works  to  supply  a  great 
public  want,  a  franchise  in  the  enjoyment  of 
which  it  is  entitled  to  the  same  protection,  and 
subject  to^the  same  duties  as  other  citizens — no 
more,  no  less ;  bound  to  bear  the  same  proportion 
of  the  public  burthen  in  the  way  of  taxation, 
entitled  to  the  same  protection  against  having  its 
property  taken  for  public  use  without  just  com- 
pensation, but  subject  to  the  same  law  which  in 
times  of  great  peril  permits  the  taking  of  its 
property  for  the  preservation  of  the  lives  or  prop- 
erty of  the  community  from  threatened  and  im- 
minent destruction,  and  in  the  exercise  of  its 
granted  street  privileges,  subject  to  the  same 
police  regulations  of  the  municipality  as  others — 
that  the  use  shall  be  so  exercised  as  not  to  become 
an  abuse. 

With  these  remarks,  and  with  a  reference  to 
the  additional  points  and  arguments  made  by  as- 
sociate counsel  who  have  been  at  different  stages 
of  the  case  connected  with  us  in  its  management, 
and  whose  arguments  are  herewith  submitted,  we 
respectfully  submit  the  case,  and  ask  that  a  rehear- 
ing be  granted. 

CHAS.  N.  FOX, 

AtCy  for  Respondent. 
A.  CAMPBELL",  SR. 

of  Ooun*<<l. 


IN  THE  SUPREME  COURT 

OF    THE 

STATE    OF     CALIFORNIA, 


THE  CITY   AND   COUNTY   OF    SAN 
FRANCISCO, 

Appellant, 

vs. 

THE     SPRING     VALLEY     WATER  | 
Respondent. 


WORKS,  \ 


Argument  of  S.  M.  Wilson  and  J.  P.  Hoge,  of 
Counsel  for  Respondent,  in  support  of  the  Petition 
for  Rehearing  herein. 


This  is  the  second  time  this  case  has  been  be- 
fore this  Hon.  Court  on  appeal.  The  decision  on 
the  first  appeal  is  to  be  found  reported  in  the 
39th  Volume  of  California  Reports,  at  pages  477 
and  following. 

That  decision  seems  to  be  lull  and  final  upon 
all  the  questions  upon  which  the  Court  passes  on 
the  second  appeal.  The  complaint  is  the  same  in 
legal  effect  now,  as  it  stands  in  the  first  record, 


24 

and  Counsel  for  the  Respondent  therefore  relied 
with  confidence  upon  the  first  decision  as  being 
the  law  of  the  case,  and  believed  that  the  second 
decision  would  be  the  same.  If  they  erred  in 
this  view  they  may  be  pardoned,  for  it  was"  the 
view  entertained  by  the  Hon.  Judge  of  the  15th 
Judicial  District,  who  brought  to  the  determina- 
tion of  the  case  great  clearness  of  judgment,  great 
learning  and  long  experience  as  a  Judge. 

But  this  Hon.  Court  in  its  last  decision  does 
not,  as  we  understand  the  case,  determine  as  a 
question  of  law  or  of  fact,  that  the  complaint  in 
„  the  present  record,  is  different  in  legal  effect  from 
what  it  was  in  the  first  record.  The  Cour-t  does 
not  dispute  the  well  established  rule  that  if  the 
records  are  in  legal  effect  the  same,  the  decision 
first  made  becomes  irrevocably  the  law  of  the 
case,  however  erroneous  it  may  be.  This  propo- 
sition has  been  so  often  determined  by  this  Court, 
that  it  needs  but  to  be  stated  to  be  observed. 
Yet  the  Court  on  this  second  appeal  examines 
the  Complaint  as  res  Integra;  not  because  there  is 
a  material  amendment,  not  because  the  establish- 
ed practice  of  the  Court  permits  it,  but  upon  the 
ground  of  an  equitable  estoppel,  arising  out  of  the 
argument  of  Respondent's  Counsel  on  the  first 
hearing.  Having  disposed  of  that  question  in 
that  way,  and  having  determined  that  the  views 
given  in  the  first  appeal  in  construction  of  the 


25 

statute  were  obiter  dicta,  the  Court  proceeds  to 
consider  the  statutes  anew,  and  to  determine  their 
true  construction  and  meaning. 

The  Court  deemed  it  unnecessary  to  consider 
the  (Question  of  former  recovery  or  estoppel,  set 
up  in  the  complaint. 

To  aid  the  Court  in  determining  whether  a  re- 
hearing should  not  be  granted,  attention  is  res- 
pectfully invited  to  a  consideration  of  the  follow- 
ing questions,  viz: 

1st.  Does  the  amended  Complaint  differ  ma- 
terially from  the  original  Complaint? 

2d.  If  the  original  and  amended  Complaints 
are  substantially  the  same,  why  is  not  the  deci- 
sion on  the  first  appeal,  the. law  of  the  case  on  the 
second  appeal  ? 

3d.  Is  the  defendant  under  any  of  the  obliga- 
tions imposed  upon  Ensign  and  his  associates,  by 
the  Act  of  April  23d,  1858? 

4th.  Did  the  last  named  Act  ever  become  a 
law  or  go  into  effect  ? 

5th.     Is  the  last  named  Act  constitutional? 

6th.  What  is  the  true  construction  of  that 
Act? 

In  discussing  these  questions,  the  Complaint  in 
the  first  record  will  be  called  for  convenience,  the 
original  Complaint,  and  that  in  the  second  record, 
the  amended  Complaint. 


26 


I. 

The  amended  Complaint  does  not  differ  materially 
from  the  original  Complaint. 

A  comparison  of  the  records  on  the  first  and 
second  appeals,  will  show  that  the  complaints  are 
identical  in  every  respect,  excepting  that  portion 
of  page  two  of  the  present  record,  comprising 
folios  five  and  six  (exclusive  of  the  last  line  of  the 
page.) 

The  simple  inquiry  is — did  this  materially 
change  the  Complaint?  The  gravamen  of  the 
original  Complaint  in  this  respect  was,  that  an 
event  had  happened,  which  gave  to  the  City  the 
absolute  right  to  have  the  water- of  the  defendant 
"  for  fire  and  other  municipal  purposes  "  free  of 
charge  ;  that  the  defendant  denied  this  right,  and 
threatened  to  cut  oft*  the  supply  ;  and  that  an  in- 
junction to  prevent  this  was  necessary  to  the  pro- 
tection of  the  City.  It  was  averred  that  there  was 
a  Water  Company  called  the  San  Francisco 
Water  Works ;  the  laws  and  ordinances  of  its 
creation,  and  affecting  its  rights  and  duties 
were  referred  to,  pleaded,  and  in  part  an- 
nexed as  exhibits  to  the  Complaint.  In  a  word. 
it  was  shown  to  be  a  duly  incorporated  Water 
Company  for  the  purpose  of  introducing  water 
into  the  City  and  County  of  San  Francisco,  with 


27 

power  to  do  so,  and  that  it  accepted  its  privileges, 
and  that  "  said  Corporation  did  introduce  pure 
fresh  water  into  the  City  and  County  of  San  Fran- 
cisco, through  lands  claimed  as  belonging  to  the 
City,"  &c.  (Fol.  9,  first  record,  same  as  Fol.  8  of 
second  record.) 

The  amended  Complaint,  retaining  all  of  these 
allegations,  only  duplicates  in  the  amendment 
the  same  averments  with  a  change  in  dates,  or 
rather,  with  a  date  before  omitted,  and  that  only 
averred  under  a  videlicet.  Dates  are  never  ma- 
terial, and  even  under  the  old  system  of  pleading, 
the  videlicet  was  used  to  indicate  that  the  pleader 
did  not  intend  to  assert  a  positive  date,  and  in 
such  a  connection  as  that  contained  in  this  com- 
plaint, it  will  not  be  contended  that  a  date  was 
material. 

Each  Complaint  sets  forth  the  existence,  and 
powers,  and  privileges  of  the  Corporation  called 
the  San  Francisco  Water  Works,  and  each  alleges 
that  pursuant  to  its  powers  and  privileges,  it  did 
introduce  such  water  into  the  City.  In  order  that 
these  allegations  as  to  the  introduction  of  water 
may  be  more  plainly  seen,  they  are  here  present- 
ed in  juxtaposition  in  parallel  lines;  it  being  re- 
membered that  in  each,  the  lines  quoted  are  pre- 
ceded by  allegations  of  authority  and  power,  in 
the  said  Corporation,  to  so  act. 


28 


Original  Complaint.      Amended  Complaint. 

"  That    under,    and    in         "  That  while  the  author- 
pursuance  of  said  Section,  ;  ity  last  aforesaid  continued, 
the  rights   and    privileges  ,  to  wit :   On  the  16th  day 
granted  to  the  San  Fran-  (  of  September,  A.  D.  1858, 
cisco    City    Water  Works  j  the    Corporation  last  a/ore- 
were    accepted    and    used  I  said,  did  introdit/ce  into  said 
by  the   said    Corporation,  j  City  and  County,  pure  fresh 
and   said    Corporation   did     water,   for   fire,   municipal 
introduce   pure  Jresh  water     and  all  other  purposes,  and 
into  the  City  and  County  of    continued," -&c. 
San     Francisco,     through  \ 
lands  claimed  as  belonging  ! 
to  the  City  and  County  of  ; 
San  Francisco,  (this  plain-' 
tift)  in  pursuance  of  said 
Section." 


The  entire  yist  of  the  allegation  being  consid- 
ered— the  fact  that  water  was  introduced  into  the 
City — we  confidently  submit  that  the  averments 
are  identical  in  substance  and  legal  effect.  The 
language  of  the  law  of  the  23d  April,  1858,  (Stat. 
1858,  page  254),  at  which  the  pleader  was  aiming 
in  each  case  reads  as  follows,  viz  :  "  Up  to,  and 
until  such  time  as  water  shall  be  introduced  into 
said  City  and  County,  by  some  other  person  or  per- 
sons." 

The  original  Complaint  contains  the  averment, 
that  the  San  Francisco  City  Water  Works  "  did 


29 

introduce  pure,  fresh  water  into  the  City  and 
County  of  San  Francisco."  The  amended  Com- 
plaint alleges  that  the  same  Corporation  "did  in- 
troduce into  said  City  and  County,  pure  fresh 
water  for  fire,  municipal  and  all  other  purposes." 
It  is  not  now  being  discussed  as  to  whether 
these  avertfients  in  either  Complaint  are  sufficient 
to  bring  the  case  within  the  law,  but  the  object 
is  to  show  that  the  Complaints  in  respect  to  the 
fact  of  the  introduction  of  water  into  the  City  are 
alike. 

It  will  certainly  be  contended  by  no  one,  that 
the  Complaints  must  be  identical,  and  that  any 
amendment  of  a  Complaint  makes  a  new  case,  and 
renders  nugatory  the  first  decision  of  the  Court. 
If  so,  a  party  can,  on  a  cause  being  reversed  and 
remanded,  change  a  date,  or  vary  an  averment, 
and  thus  claim  that  the  decision  of  the  Supreme 
Court  solemnly  made,  and  upon  the  same  substan- 
tial facts,  is  not  the  law  of  the  case.  Such  an  in- 
genious method  of  avoiding  the  decisions  of  this 
Court,  has  never  occurred  to  the  minds  of  the  bar, 
surely,  or  it  would  have  been  acted  on.  It  has 
always  been  regarded  as  unavoidable,  that  a  de- 
cision once  made  in  a  cause  becomes  the  law  of  a 
case,  and  controls  it  in  all  future  appeals,  unless 
it  comes  again  with  new  and  substantial  facts, 
that  no  longer  leave  the  first  decision  applicable. 

Here   the  same   averments  in   substance  were 


30 

made.  The  same  evidence  which  would  have 
proved  the  allegations  of  the  original  Complaint, 
would  have  proved  the  amended  Complaint. 
According  to  the  first  decision,  the  original  Com- 
plaint would  have  been  bad  on  demurrer,  except 
for  the  judgment  set  forth  in  -the  Complaint  as  an 
estoppel ;  and  it  was  only  because  of  this  alleged 
judgment,  that  the  cause  was  remanded  to  the 
Court  below  for  further  proceedings.  Omitting 
then  the  judgment  from  the  original  Complaint, 
can  it  be  that  that  Complaint  is  bad  on  demurrer, 
and  that  the  amended  Complaint  with  the  same 
omission  is  good  ?  Can  it  be  that  the  whole 
equity  in  the  original  Complaint  rests  on  the 
judgment  set  forth  in  it,  but  that  the  amended 
Complaint  has  an  equity  in  it,  outside  of,  and  be- 
yond the  judgment  pleaded?  It  is  manifest  that 
this  cannot  be,  and  it  is  equally  plain  and  clear, 
that  if  law  be  a  science,  each  of  these  Complaints 
must  stand  or  fall  by  the  same  test. 

It  does  not  seem,  however,  that  the  Court  in 
its  decision  has  contravened  these  views,  and  they 
have  been  elaborated  to  make  clearer  the  proposi- 
tions that  present  themselves  for  consideration 
under  the  next  point.  It  will  be  assumed,  there- 
fore, that  the  first  point  cannot  be  disputed — that 
the  amended  complaint  does  not  differ  materially 
from  the  original  complaint. 


31 


II. 

The  original  and  amended  complaints  being  sub- 
stantially the  same.,  wlty  is  not  the  decision  on  the 
first  appeal  the  law  of  the  case? 

In  both  complaints,  and  especially  upon  the 
first  appeal,  it  was  sought  to  establish  the  duty 
of  the  defendant  to  furnish  water  for  all  munici- 
pal purposes  to  the  city,  as  arising  from  two  sour- 
ces ;  first,  from  the  condition  of  the  grant  to  En- 
sign and  his  associates,  and  second,  as  the  succes- 
sor of  the  San  Francisco  City  Water  Works — 
being  successor  to  its  burdens  and  obligations,  as 
well  as  its  property  and  rights.  But  the  Court 
held  "that  the  rights  of  the  plaintiff  in  this 
respect  must  be  ascertained  entirely  from  the 
conditions  of  the  grant  to  George  Ensign  and  his 
associates."  (39  Cal.  478.)  The  Court  also  held 
that  kt  it  is  not  averred  that  water  had  been  in- 
troduced into  the.Cjty  and  County  by  any  other 
person  or  persons.  The  City,  therefore,  is  not 
entitled  to  the  use  of  water  from  the  pipes  of  the 
defendant  for  other  purposes  than  the  extinguish- 
ment of  fires,  free  of  charge,  by  reason  of  the 
Statute."  (Ib.  479.) 

Here  the  Court,  with  the  Statute  spread  before 
it,  held  directly  that  the  averment  in  the  com- 
plaint did  not  show  that  the  event  specified  in  the 
Statute  as  a  necessary  occurrence  to  produce  the 
alleged  duty  had  happened,  and  that,  therefore, 


S2 

there  was  no  duty  incumbent  upon  the  Company 
to  furnish  water  free  of  charge  except  for  fires. 

If  the  original  complaint  did  not  show  (in  the 
hm<:iiage  of -Mr.  Justice  Crockett,  in  his  separate 
opinion,  39  Cal.  483)  "  that  the  event  has  hap- 
pened," it  follows  that  the  amended  complaint 
equally  fails  to  show  it. 

In  the  opinion  on  the  second  appeal  the  Court 
says  that  in  the  first  opinion  the  Court  held  that 
"the  complaint  failed  to  aver  that  the  event  had 
transpired." 

How  this  Hon.  Court  met  the  question  and  was 
enabled  to  place  one  construction  upon  the  orig- 
inal complaint,  and  another  upon  the  amended 
complaint,  is  best  shown  by  the  following  extract 
from  the  last  decision  : 

"  But  it  is  now  said  that  the  Court  miscon- 
strued the  complaint,  and  that  it  did  in  fact  con- 
tain the  averment  which  was  assumed  to  have 
been  omitted.  However  this  may  be,  the  de- 
fendant is  estopped  from  raising  the  point.  The 
adjudication  of  the  Court,  as  to  the  character  of 
the  complaint  and  its  legal  effect,  has  become 
the  law  of  the  case,  and  it  is  too  late  now  to  in- 
quire into  its  correctness.  It  may  be  remarked, 
however,  that  if  the  Court  fell  into  an  error  in 
the  particular  referred  to,  the  counsel  who  now 
raises  the  point  fell  into  the  same  error  ;  for  on 
referring  to  his  brief  on  the  former  appeal,  we 


33 

find  the  statement  that  '  the  complaint  not  only 
fails  to  show,  but  it  positively  negatives  the  prop- 
osition that  any  other  person  or  persons  have  in- 
troduced water  into  said  City  and  County.'  The 
defendant  has  had  the  benefit  of  a  favorable  ruling 
by  this  Court,  on  the  assumption  that  the  above 
statement  was  true ;  and  we  are  now  asked  to 
decide  that  the  plaintiff  shall  be  precluded  from 
supplying  the  omitted  averment,  on  the  ground 
that  it  is  not  true  that  the  omission  existed.  But 
the  defendant  will  not  be  permitted  to  claim  the 
benefit  of  our  former  ruling  and  at  the  same  time 
to  repudiate  the  existence  of  the  assumed  fact  on 
which  the  ruling  was  based.  We  are,  therefore, 
of  opinion  that  we  are  not  precluded  on  this 
appeal  from  considering  the  legal  effect  of  the 
averment  in  the  second  amended  complaint  in 
respect  to  the  introduction  of  water  by  the  San 
Francisco  City  Water  Works,  in  September, 
1858." 

As  to  the  estoppel  said  to  arise  from  a  former 
argument  in  a  cause,  we  respectfully  urge  that  a 
cause  must  be  tried  on  the  record  and  on  the 
record  alone.  The  argument  of  counsel  is  to  be 
regarded  only  so  far  as  it  produces  conviction  on 
the  mind  of  the  Court.  The  judgment  is  that 
of  the  Court  alone,  and  all  its  responsibilities  at- 
tach to  the  Court  alone.  If  counsel  misappre- 
hends a  point  or  misconceives  the  law,  or  mistakes 
5 


34 

the  facts  or  erroneously  construes  a  complaint,  it 
is  his  misfortune ;  but  if  he  is  free  from  fraud  in 
the  matter,  can  it  be  that  the  unfortunate  client 
is  to  be  visited  with  a  penalty  for  such  innocent 
error  ?  If  counsel  '  intentionally  misleads  the 
Court,  it  is  a  matter  personal  to  him,  and  the 
Court  should  deal  with  him  individually  for  it, 
But  it  is  to  be  noted  that,  the  Court  does  not 
charge  the  counsel  from  whose  brief  the  extract 
in  the  opinion  of  the  Court  is  made,  with  having 
made  an  intentional,  misstatement,  nor  with  hav- 
ing misled  the  Court ;  indeed  it  is  not  even  as- 
sumed that  the  Court  relied  upon  that  statement. 
It  is  hardly  to  be  supposed,  that  in  determining 
a  demurrer  to  the  complaint,  the  Court  did  not 
itself  read  the  entire  complaint.  That  this  part 
of  the  complaint,  was  brought  prominently  before 
the  Court,  is  shown  by  the  able  brief  of  the  former 
City  Attorney,  Mr.  Nouges.  At  page  three  of  his 
brief  on  the  first  appeal,  will  be  seen  his  analysis  of 
the  complaint,  presenting  in  bold  relief  the  aver- 
ments in  the  complaint  on  the  subject  of  the  introduc- 
tion of  the  water  into  the  city.  It  is  clear  from  the 
opinion  of  Mr.  Justice  Temple  in  the  case,  on  the 
first  appeal,  that  he  carefully  canvassed  the  whole 
complaint,  and  that  nothing  escaped  him.  It  is, 
therefore,  irresistible  that  the  Court  in  its  decision 
was  construing  the  complaint,and  that  the  averment 
so  much  relied  on  by  the  City  was  held  not  to  meet 
the  event  contemplated  by  the  Statute — in  other 


35 

words,  that  an  averment  that  the  San  Francisco 
City  Water  Works  did  introduce  pure  fresh  water 
into  the  City  was  not  equivalent  to  an  averment 
that  the  event  referred  to  in  the  Statute  had  hap- 
pened. 

In  the  brief  of  Messrs.  McAllister  &  Bergin,  of 
counsel  for  the  respondent  (page  7),  this  averment 
of  the  complaint  is  expressly  referred  to.  They 
say  in  reference  to  the  allegations  of  the  complaint 
in  connection  with  the  San  Francisco  City  Water 
Works:  "but  while  it  is  alleged  that  the  Com- 
pany accepted  and  used  them,  and  introduced 
pure  fresh  water  into  the  city,  the  complaint  is 
silent  as  to  when  the  Company  commenced  to  do 
so." 

The  Court  must  be  held  to  have  examined  the 
complaint  fully,  and  its  error,  if  it  be  one,  was 
not  in  overlooking  the  averments  to  which  atten- 
tion has  been  called,  but  in  the  construction 
placed  upon  it.  It  is  plain  that  the  Court  did 
construe  the  complaint,  and  in  the  language  of 
the  last  decision,  "  the  adjudication  of  the  Court, 
as  to  the  character  of  the  complaint  and  its  legal 
effect,  has  become  the  law  of  the  case,  and  it  is  too 
late  now  to  inquire  into  its  correctness.'''' 

With  all  deference  to  the  Court,  be  it  said  that 
defendant's  counsel  do  not  say  "  that  the  Court 
misconstrued  the  complaint ;"  on  the  contrary  they 
assert  that  the  Court  construed  it,  and  by  that 


construction  it  was  held  that  the  event,  which  was 
to  change  the  rights  of  the  city,  had  not  been 
shown  to  have  transpired.  And  such  being  the 
construction,  it  was  an  "  adjudication  of  the 
Court  as  to  the  character  of  the  complaint  and 
its  legal  effect  and  has  become  the  law  of  the 
case,  and  it  is  too  late  to  inquire  into  its  correct- 
ness." We  then  accept,  as  we  must,  the  first 
decision  as  correct.  Now,  when  the  old  aver- 
ment of  the  complaint  is  duplicated — when  an 
amendment  is  made  which  is  a  mere  repetition  of 
what  was  there  before — it  is  said  that  counsel 
having  asserted  that  the  complaint  with  the  first 
averment  was  defective,  are  estopped  to  question 
its  sufficiency  after  the  repetition.  Logically 
considered,  a  defective  averment  is  still  defective 
when  repeated.  Logically,  a  construction  of  an 
allegation  is  not  changed  because  it  occurs  a  sec- 
ond time.  Logically  considered,  "  the  law  of  the 
case  "  as  to  an  averment,  created  by  a  first  decis- 
ion, continues  the  law  of  the  case  as  to  the  same 
averment  ever  after.  Can  it  be  maintained  that 
when  a  construction  is  given  to  a  complaint  and 
"  the  adjudication  of  the  Court  as  to  the  charac- 
ter of  the  complaint  and  its  legal  effect  has  be- 
come the  law  of  the  case,  and  it  is  too  late  to 
inquire  into  its  correctness,"  that  a  simple  repeti- 
tion of  a  part  of  what  is  already  there  avoids  the 
decision  and  opens  the  case  up  for  a  new  and 
different  determination  ?  If  it  be  so,  that  rule 


37 

sometimes  thought  very  severe — that  iron  chain 
that  has  firmly  held  many  a  case  on  its  second 
appeal — will  prove  but  a  rope  of  sand.  Can 
that  be  a  rational  system  which  permits  an  aver- 
ment held  defective  on  a  first  appeal  to  be  held 
sufficient  on  a  second  appeal  and  "  the  law  of  the 
case"  avoided,  simply  because  the  averment  is 
repeated  under  the  guise  of  an  amendment  ? 
And  should  counsel  be  estopped  from  questioning 
the  averment  the  second  time  and  applying  the 
rule,  because  he  questioned  it  the  first  time  ? 

It  is  confidently  urged  that  the  Court  can,  con- 
sistently with  fixed  principles  of  law,  look  only 
at  the  record  itself  and  the  decision  upon  it;  and 
if  upon  the  second  appeal  the  record  is  found  to 
be  substantially  the  same,  the  first  decision  as 
"the  law  of  the  case"  must  control. 

When  the  identity  of  the  records  is  established 
the  rule  invoked  cannot  be  evaded  or  avoided  by 
an  inquiry  into  the  reasons  of  the  decision  or  the 
causes  which  led  to  it.  It  is  then  too  late.  In 
the  clear  language  of  the  last  decision  "  the 
adjudication  of  the  Court  as  to  the  charac- 
ter of  the  complaint  and  its  legal  effect  has 
become  the  law  of  the  case,  and  it  is  too  late  now 
to  inquire  into  its  correctness."  The  Court  then 
did  on  the  first  appeal  determine  "  the  character 
of  the  complaint  and  its  legal  effect ;"  and  that 
determination  "  became  the  law  of  the  case." 


353816 


38 

Being  the  law  of  the  case,  it  must  now  hold  the 
same  complaint  to  be  of  the  same  legal  effect  as 
it  always  was. 

In  the  subsequent  points  it  will  be  shown  that 
the  averment  in  the  complaint  does  not  satisfy 
the  statute,  though  on  this  subject  reference  is 
made  to  the  able  views  of  the  learned  counsel  on 
the  part  of  the  respondent  herewith  presented. 

III. 

The  defendant  is  not  under  any  of  the  obligations 
imposed  upon  Ensign  and  his  associates  by  the  Act 
of  23rd  April,  1858. 

The  complaint  (at  folio  3)  alleges  that  the  de- 
fendant "is  a  corporation  duly  organized  and  act- 
ing under  and  by  virtue  of  an  Act  of  the  Legisla- 
ture of  the  State  of  California  entitled,  'An  Act 
for  the  incorporation  of  Water  Companies,'  ap- 
proved April  22d,  1858." 

This  act  is  to  be  found  in  the  Statutes  of  1858, 
pages  218  and  following.  By  reference  to  that 
Statute  we  find  that  the  Act  of  April  14th,  1853, 
providing  for  the  formation  of  corporations  for 
certain  purposes,  (Statutes  1853,  page  87)  and  the 
Act  amendatory  thereof  passed  30th  April,  1855, 
(Statutes  1855,  page  205)  are  made  to  extend  and 
apply  to  all  corporations  then  already  formed,  or 
that  might  be  formed  thereafter,  to  supply  cities 
and  their  inhabitants  with  pure  fresh  water. 


39 

These  laws  referred  to  in  the  Act  of  22d  April, 
1858,  and  that  Act  itself,  constitute  the  general 
laws,  therefore,  under  which  the  defendant  was 
created,  and  from  which  it  derives  its  powers. 
Beyond  these  we  need  not  look  and  cannot  look, 
for  the  Constitution  itself,  the  paramount  law  of 
the  land,  declares  in  most  unequivocal  language, 
that  "  Corporations  may  be  formed  under  general 
laws,  but  shall  not  be  created  by  special  act,  except 
for  municipal  purposes."  The  defendant  not  being 
a  municipality  the  exception  has  no  application. 
The  Constitution  having  therefore  limited  the 
formation  of  such  corporations  to  "general  laws," 
and  the  complaint  having  specifically  designated 
the  "general  laws"  under  which  the  defendant 
was  formed,  we  look  to  those  general  laws  alone 
for  the  powers  of  this  corporation  defendant. 

Section  2  of  that  Act  of  April  22d,  1858,  gave 
the  defendant  "the  right  to  purchase,  or  to  appro- 
priate, and  take  possession  of,  and  use  and  hold 
all  such  lands  and  waters  as  may  be  required  for 
the  purposes  of  the  company  upon  making. com- 
pensation therefor."  The  power  of  condemnation 
is  then  given. 

Section  3  is  a  general  equalizing  clause  put- 
ting all  water  companies  upon  an  equality  as  to 
"privileges,  immunities  and  franchises." 

Section  4  defines  the  duties  and  provides  for 
the  rate  of  charges. 


40 

Section  5  gives  the  corporation  the  right  "  to 
use  so  much  of  the  streets,  ways  and  alleys  in  any 
town,  city,  or  city  and  county,  or  any  public  road 
therein,  as  may  be  necessary  for  laying  pipes  or 
conducting  water  into  any  such  town,  city,  or  city 
and  county,  or  through  or  into  any  part  thereof." 
This  right,  to  be  sure,  is  subject  to  the  reasonable 
direction  of  the  Board  of  Supervisors,  or  city  or 
town  authorities,  as  to  the  mode  and  manner  of 
exercising  such  right,  but  this  would  have  been 
necessarily  implied  and  attached  to  the  right,  for 
all  rights  must  be  exercised  in  a  reasonable  mode 
and  manner  with  respect  to  the  rights  of  others. 
"  The  right"  to  lay  the  pipes  in  the  streets  comes 
from  the  law,  and  that  is  enough  for  the  purposes 
of  the  argument. 

We  then  have  the  defendant  corporation,  or- 
ganized under  these  general  laws  and  with  the 
general  powers  and  rights  and  duties  above  re- 
ferred to.  Immediately  upon  its  organization  it 
became  an  artificial  person — a  legal  entity — pos- 
sessed of  no  property  at  all  but  entitled  to  ac- 
quire property  and  endowed  with  certain  powers 
and  rights  which  it  might  exercise.  It  continued 
through  some  lapse  of  time,  however  short,  in 
this  predicament.  Though  on  filing  its  certificate 
of  incorporation  in  the  office  of  the  County  Clerk 
the  signers  of  the  certificate  became  a  body  politic 
and  corporate,  yet  it  could  not  act  or  even  re- 
ceive anything  until  the  first  meeting  of  its  trus- 


41 

tees,  to  accomplish  which  required  time  and  a 
compliance  with  the  law  (Stat.  1853,  page  88, 
sec.  8). 

It  is  therefore  clear  that,  though  the  complaint 
avers  that  the  defendant  corporation  "has  become 
and  is  the  owner  of  all  the  franchise  granted  one 
George  Ensign,"  etc.  (complaint,  fol.  3),  yet  its 
organization  under  the  general  laws  was  a  neces- 
sary preliminary  to  become  the  recipient  of  these 
franchises,  and  that  very  organization  had  already 
clothed  it  with  all  the  powers  and  duties  specified 
in  the  law. 

But  what  franchise  did  Ensign  and  his  associ- 
ates have  under  the  Act  of  23d  April.  1858  ?  It 
is  manifest  that  the  franchise  was  far  less  than 
that  already  possessed  by  the  defendant  corpora- 
tion. It  had,  under  the  law  of  its  creation,  the 
unrestricted  right  "to  use  so  much  of  the  streets, 
ways  and  alleys  "  of  the  "  city  and  county  and 
any  public  road  therein,  as  may  be  necessary  for 
laying  pipes  for  conducting  water  into  such  town, 
city,  or  city  arid  county,  or  through  any  part 
thereof."  (Stat.  1858,  page  219).  It  even  had 
the  power  of  condemnation.  But  Ensign  and 
associates  had  merely  the  right  to  lay  down  such 
water  pipes  under  great  restrictions,  and  with 
severe  limitations  as  to  time  and  in  other  particu- 
lars. What,  therefore,  could  Ensign  and  his 
associates  give  to  the  defendant  by  way  of  power 
6 


42 

and  privilege  and  franchise  that  it  did  not  already 
possess  ? 

An  assignment  by  Ensign  and  associates  of 
their  limited  and  restricted  franchise  to  the  de- 
fendant, already  possessed  of  the  same  franchise 
without  the  limits  or  restrictions,  could  have  but 
one  legal  effect,  and  that  would  be  to  deprive 
Ensign  and  associates  of  their  franchise — or  in 
other  words,  practically  to  extinguish  it.  The 
assignee  would  get  nothing,  for  after  the  assign- 
ment he  would  have  nothing  that  he  did  not  have 
before.  This  may  be  illustrated  in  various  ways : 
Suppose  A  has  a  right  of  way  across  B's  farm, 
along  a  certain  private  lane,  at  all  hours,  and  with 
all  kinds  of  vehicles ;  and  that  C  and  his  assigns 
have  a  right  of  way  along  the  same  lane,  but  are 
limited  to  certain  hours  and  certain  kinds  of  vehi- 
cles. Let  C  assign  all  his  right  of  way  to  A  ;  C 
merely  extinguishes  his  right  to  enjoy  it  personal- 
ly, and  the  lesser  right  assigned  to  A  is  merged  in 
his  larger  right  previously  existing,  and  which 
continues  unaffected  by  the  transfer. 

Again:  A  has  a  power  of  attorney  to  grant,  bar- 
gain, and  sell  land  under  full  covenant  of  general 
warranty  and  for  cash  or  on  credit.  B  has  from 
the  same  constituent,  a  power  of  sale,  but  limited 
to  sales  for  cash,  and  by  way  of  quit  claim  only, 
and  with  power  of  substitution.  Let  him  substi- 
tute A,  and  A  will  take  no  new  power  not  before 
possessed,  and  the  original  power  will  remain  un- 
affected. 


43 

In  the  very  nature  of  things,  then,  the  defendant 
corporation  could  get  nothing  from  Ensign  and 
his  associates  by  becoming  owner  of  their  franchise. 
The  complaint  is  limited,  in  this  regard,  to  a  sim- 
ple allegation  that  the  defendant  is  the  owner  of 
that  franchise.  It  is  no  where  averred  that  the 
property,  even  of  Ensign  and  associates,  was  con- 
veyed to  the  defendant;  nor  that  the  defendant 
ever  exercised,  used  or  in  any  manner  enjoyed 
the  franchise  granted  Ensign  and  his  associates. 

Whilst  it  is  averred  that  after  the  13th  day  of 
February,  1865,  the  defendant  did  supply  the  City 
with  water  (folio  13),  it  is  not  alleged  to  have  been 
done  under  any  particular  franchise  or  power,  and 
all  that  it  is  alleged  to  have  been  done  is  referable 
to  its  general  powers  and  rights  as  a  water  Com- 
pany under  the  general  law. 

Perhaps  a  short  history  of  the  Ensign  Act 
may  make  the  above  views  clearer.  In  the 
original  Statute  of  1850,  on  the  subject  of  in- 
corporations, there  was  no  provision  for  incorpor- 
ating Water  Companies,  but  on  May  3d,  1852, 
(see  Stat.  1852,  page  171,)  an  Act  was  passed 
"  To  provide  for  the  incorporation  of  Water  Com- 
panies," which  made  the  provisions  of  Chapters 
one  and  five  of  the  Statute  of  1850,  applicable  to 
Water  Companies.  The  Act  of  1852,  however, 
(Sec.  3,)  instead  of  giving  Water  Companies  the 
general  right  to  supply  cities  with  water,  express- 


44 

ly  limited  them  to  cases  where  they  should  be 
"  previously  authorized  by  ordinance,  or  unless  it 
be  done  in  conformity  with  a  contract  entered 
into  between  the  City  and  the  Company."  This 
remained  the  law  down  to  the  time  of  the  passage 
of  the  Act  of  the  22d  April,  1858,  above  referred 
to,  and  under  which  the  defendant  was  incorpor- 
ated. That  law  removed  the  restrictions  and  lim- 
itations placed  upon  Water  Companies  by  the 
Act  of  1852.  The  Ensign  Act,  however,  must 
have  been  introduced  as  a  bill,  before  one  of  the 
houses  of  the  Legislature,  long  before  the  Act  of 
April  22d,  1858,  was  passed,  for  the  Ensign  Act 
itself  was  approved  on  the  next  day,  the  23d 
April,  1858.  The  Ensign  Act  was  intended  to 
relieve  him  and  his  associates  from  the  necessity 
of  procuring  from  the  City  authorities,  an  ordi- 
nance to  allow  them  to  supply  the  City  with 
water,  or  entering  into  a  contract.  There  was 
doubtless  a  great  rivalry  between  Water  Compa- 
nies, and  Ensign  and  associates  applied  to  the 
Legislature  for  the  right,  rather  than  to  the  Su- 
pervisors of  the  City  and  County.  No  doubt  the 
discussion  of  the  Ensign  Act  before  the  Judiciary 
Committees  of  the  Legislature,  demonstrated  the 
folly  of  restricting  any  one  in  the  introduction  of 
water  into  Cities,  and  the  danger  of  giving  Cities 
and  Towns  such  power  for  evil,  as  the  Act  of  1852 
gave.  The  result  was  the  introduction  and  pas- 
sage of  the  Act  of  22d  April,  1858.  It  and  the 


45 

Ensign  Act  were  pending  in  the  Legislature  to- 
gether ;  they  doubtless  went  to  the  Governor  to- 
gether for  his  approval;  arid  doubtless  the  mere 
difference  of  one  day  in  the  dates  of  the  respect- 
ive approvals,  was  merely  accidental.  The  En- 
sign Act  had  been  passed  in  fear  that  the  general 
Act  might  not  pass.  When  it  did  pass,  it  met  the 
evil  that  prevailed  before,  it  destroyed  the  power 
of  the  authorities  of  the  City  over  the  subject,  ca- 
pable of  being  used  in  a  most  fraudulent  manner, 
and  it  gave  any  Company  the  right  to  enter  into 
competition  with  any  other,  and  to  supply  whom- 
soever it  might  obtain  as  a  customer. 

The  Ensign  Act,  therefore,  became  and  was  on 
its  approval,  entirely  impotent.  The  general 
Act  covered  the  same  subject  matter,  and  the  de- 
fendant incorporated  under  the  general  Act. 

We  therefore  submit  that,  as  the  defendant 
exercised  no  privilege  or  franchise  which  it  did 
not  possess  under  the  general  law,  no  duties  or 
burdens  attached  to  it  except  under  the  general 
law.  * 

That  the  Corporation  defendant  could  not  de- 
rive any  rights  or  powers  under  the  Constitution 
of  this  State  from  any  source  other  than  the  gen- 
eral laws,  will  be  presented  under  one  of  the 
subsequent  points. 


46 


IV. 

It  does  not  appear  that  the  Ensign  Act  (of  23d 
April,  1858,)  ever  became  a  law,  or  went  into  effect. 

Referring  to  this  Act  which  is  annexed  to  the 
Complaint  as  Exhibit  A,  we  find  in  Sec.  8,  (Fol. 
34,  et  seq).  the  following  provision,  viz  : 

"  This  Act  shall  not  take  effect,  unless  the  par- 
ties named  in  Section  1,  shall  within  sixty  days 
after  its  passage,  duly  organize  themselves  in  con- 
formity with  the  existing  laws,  regulating  corpor- 
ations, now  in  force  in  this  State." 

Now  this  Act  is  a  private  Act,  and  not  as  a  gen- 
eral rule  to  be  noticed  judicially  by  the  Court. 
The  Court  only  notices  it  because  it  is  specially 
pleaded,  but  when  specially  pleaded,  we  find  that 
it  is  not  to  take  effect  until  the  happening  of  an 
event ;  of  the  happening  of  that  event,  the  Court 
cannot  take  judicial  notice,  and  the  Complaint 
nowhere  avers  that  Ensign  and  his  associates  did 
organize  themselves  within  the  sixty  days,  or  any 
other  time.  It  is  nowhere  averred  that  the  Act 
did  take  effect. 

Again,  the  privileges  granted  Ensign  and  his 
associates  were  conditional.  They  were  (by  Sec. 
1,  Fol.  28,)  to  lay  down  3,000  feet  of  pipe  within 
one  year.  There  is  no  averment  on  this  subject 
nor  anything  to  show  that  no  forfeiture  occurred. 

In  this  connection  it  is  to  be  remembered,  that 


47 

every  intendment  is   to   be  taken   most   strongly 
against  the  pleader. 

Collins  vs.  Butler,  (14  Cal.,  227.) 
Sparks  vs.  De  la  Guerra,  (Ib.  111.) 
Green  vs.  Oovilaud,  (10  Ib.  322.) 
Dye  vs.  Dye,  (11  Ib.  167.) 

We  therefore  confidently  submit  that  upon  this 
point  alone,  the  judgment  of  the  Court  below 
should  be  affirmed. 


V. 

The  Ensign  Act  is  unconstitutional. 

Attention  has  already  been  called  to  the  provi- 
sion of  the  Constitution  of  this  State,  (Art.  4, 
Sec.  31,)  which  prohibits  any  such  Corporation 
as  a  Water  Company  from  being  "  created  by 
special  Act,"  and  making  it  necessary  that  they 
should  ;'  be  formed  under  general  laws."  The 
object  is  manifestly  to  do  away  with  all  the  abuse, 
corruption,  fraud  and  wrong,  done  under  the  old 
system  of  Special  Charters.  The  Constitution, 
therefore,  very  wisely  places  a  positive  check  on 
the  Legislature,  and  in  direct  terms  declares,  that 
only  "  general  laws  "  shall  be  passed  on  this  sub- 
ject, These  "  general  laws  "  remain  the  law  of 
the  land  throughout  time.  Any  body  of  men,  for 
any  of  the  purposes  permitted,  may  become  incor- 
porated. All  are  upon  a  common  platform,  and 


48 

all  have  equal  rights,  privileges,  immunities,  fran- 
chises and  powers.  .  They  enter  into  the  business 
under  the  keen  spirit  of  competition,  and  the  odor 
of  monopoly  is  dispersed.  Each  is  put  upon  its 
good  behavior,  and  each  must  look  to  its  own  en- 
terprise and  energy  for  success. 

Corporations  thus  become  what  they  should  be 
— an  aggregation  of  capital  for  great  enterprises, 
beyond  the  limits  of  ordinary  fortunes — having 
the  machinery  of  a  body  politic  and  corporate, 
and  being  an  artificial  person  protected  from  dis- 
solution by  the  death  of  one  of  its  members.  But 
it  still  remains  subject  to  Legislature  control,  and 
its  very  organization  may  be  changed,  and  the 
law,  from  which  it  derives  life,  may  itself  be  re- 
pealed. 

What  does  the  Constitution  mean  by  the  lan- 
guage, that  '"  Corporations  may  be  formed  under 
general  laws,  but  shall  not  be  created  by  special 
Act?"  It  certainly  did  not  refer  to  mode  and 
manner,  merely  of -legislation  on  the  subject.  It 
had  a  deeper  meaning,  a  more  profound  intention, 
a  much  sounder  policy.  It  certainly  had  in  view 
the  powers,  privileges,  franchises  and  immunities 
of  Corporations,  and  none  of  these  were  left  to  spe- 
cial legislation,  but  were  required  to  be  given 
controlled  and  limited  by  the  general  laws  on  the 
subject.  The  Corporation  itself  is  a  franchise, 
and  is  defined  by  Mr.  Justice  Blackstone  to  be  a 


49 

franchise.  He  says  it  is  "  a  franchise  for  a  num- 
ber of  persons  to  be  incorporated  and  exist  as  a 
body  politic,  with  a  power  to  maintain  perpetual 
succession,  and  to  do  corporate  acts,  and  each  in- 
dividual of  such  Corporation  is  also  said  to  have 
a  franchise,  or  freedom." 

2  Bl.  Comm.  37. 

See  also  Dartmouth  College  vs.  Woodward, 
4  Wheat.  657. 

If  these  corporate  powers  be  then  franchises, 
we  must  look  to  the  general  law  for  all  the  fran- 
chises any  corporation  can  enjoy.  If  it  does  not 
enjoy  them  under  the  general  law,  under  what 
law  does  it  hold  them  ?  The  extent  of  the  fran- 
chises of  a  corporation  is  to  be  determined  by  the 
charter.  (Auburn  and  Cato  Plank  Road  Co.,  vs. 
Douglass,  9  N.  Y.  R.  451.) 

Mr.  Bouvier,  in  his  Law  Dictionary,  (  Word 
franchise,)  says  in  regard  to  franchises,  "In  the 
United  States  they  are  usually  held  by  corpora- 
tions created  for  the  purpose,  and  can  be  held 
only  under  Legislative  grants."  He  cites  a  large 
number  of  cases.  Apply  to  this  the  language 
of  the  Constitution  of  California  prohibiting 
special  acts  and  requiring  all  corporations  to  be 
formed  under  general  laws,  and  the  result  seems 
plain — that  the  general  law  must  be  regarded 
alone  in  determining  the  franchises  which  may  be 
7 


50 

enjoyed   by  a  corporation,  and  that   it  can  have 
none  but  what  the  general  law  gives. 

These  corporate  franchises  were  held,  in  the 
great  Dartmouth  College  case  cited,  to  be  invio- 
lable, and  that  they  were  protected  by  the  Con- 
stitution of  the  United  States  as  contracts. 
For  this  rea'son,  also,  our  Constitution  pro- 
hibited special  acts,  and  made  all  the  general 
laws  liable  to  alteration  or  repeal  at  the  will 
of  the  Legislature.  The  power  to  alter  or 
amend  is  limited  to  the  general  laws  and  the 
special  acts  relating  to  municipalities.  If  any 
special  act  can  give  powers  and  privileges  to  a 
particular  corporation,  it  follows  within  the  prin- 
ciples of  the  Dartmouth  College  case,  that  a  con- 
tract results,  which,  under  the  Constitution  of 
the  United  States,  is  inviolable.  There  is  then 
but  one  rule  of  safety  under  the  Constitution  of 
the  State,  and  one  mode  alone  of  maintaining  its 
manifest  policy ;  and  that  is  to  confine  all  corpor- 
ations to  the  general  law  under  which  they  are 
formed,  and  den}dng  them  any  powers,  privileges 
or  franchises  derived  from  any  special  law. 

The  Ensign  Act  seems  to  be  an  ingenious  at- 
tempt to  evade  the  Constitution — an  attempt  to 
comply  with  the  letter,  but  a  design  to  accomplish 
what  its  spirit  forbids.  A  franchise  was  "created 
by  special  act"  and  given  to  "  George  H.  Ensign 
and  his  associates."  In  Section  1,  it  is  called  a 
"  right,"  in  Section  6,  a  "  privilege,"  whilst  in 


51 

Section  5,  it  is  called  a  "  franchise."  But  the  en- 
tire vesting  of  these  rights,  privileges  and  fran- 
chise all  depend  (by  Section  Eight)  upon  the  con- 
dition precedent  that  Ensign  and  his  associates 
shall  "  duly  organize  themselves  in  conformity 
with  the  existing  laws  regulating  corporations 
now  in  force  in  this  State." 

Xow  is  it  not  indisputable  that  the  Legislature 
intended  that  "Ensign  and  his  associates"  should 
not  have,  take,  or  enjoy  these  franchises  as  indi- 
viduals? Is  it  not  manifest,  that  they  would  take 
merely  as  corporators?  Was  not  the  whole  law 
made  to  "  take  effect"  only  by  virtue  of  the  act  of 
becoming  incorporated  ?  After  that  act  of  incor- 
poration, would  not  the  company  take  the  fran- 
chise rights  and  privileges  granted,  as  the  in- 
tended grantee  ?  We  respectfully  submit  that 
words  cannot  make  this  plainer ;  and  that  if  the 
Court  connot  look  through  the  flimsy  guaze-work 
which  covers  this  Act,  the  Constitution  itself,  is 
too  easy  of  evasion  to  afford  any  protection 
against  legislative  power. 

We  respectfully  submit  that  the  Ensign  Act  is 
unconstitutional. 


VI. 

What  is  the  true  construction  of  the  Ensign  Act  ? 
It  is  claimed  on  the  part  of  the  plaintiff  that  the 
defendant,  ever  since  the  16th   September,  1858, 


52 

has  been  under  an  obligation  to  furnish  to  the 
City  and  County  all  the  water  it  needed  for  fire 
and  all  other  municipal  purposes,  free  of  charge; 
and  that  that  obligation  continues  and  will  con- 
tinue during  the  corporate  existence  of  the  defen- 
dant. At  the  date  of  the  Ensign  Act  (23d  April, 
1858,)  the  City  and  County  of  San  Francisco 
contained  a  population  of  about  eighty  thousand 
souls ;  it  has  grown  to  be  a  city  of  about  one  hundred 
and  eighty  thousand.  New  streets  have  been  opened 
and  its  sewers  have  in  the  mean  time  been  extended 
many  miles.  Its  demands,  for  protection  against 
fire,  have  greatly  increased,  and  the  power  of 
steam,  to  exhaust  the  water,  has  taken  the  place 
of  the  slow  work  of  the  human  arm.  The  hospitals 
almhouse,  prisons,  and  other  public  buildings  have 
been  enlarged  and  increased,  and  each  has  its  de- 
mand for  more  water.  New  public  squares  have 
been  laid  out,  improved  and  planted  in  grass  and 
shrubbery,  and  to  their  very  existence  large  sup- 
plies of  water  are  needed.  Innumerable  streets 
are  to  be  watered.  At  last  comes  the  great 
park,  miles  in  extent,  with  thousands  of  young 
trees,  innumerable  plants,  and  in  prospect  large 
grassy  lawns  and  numerous  artificial  lakes,  foun- 
tains and  rivulets.  The  squares  and  parks  are 
4  the  lungs  of  the  cities,"  and  are  claimed  to  be 
necessary  to  health  and  beauty  and  morals.  They 
must  have  water,  and  without  water  they  cannot 
exist.  In  the  future  the  demand  for  water  must 


53 

increase  as  much  as  in  the  past,  and  it  is  claimed 
that  free  of  all  charge,  this  great  municipal  de- 
mand, must  be  supplied  by  defendant  "  to  the  full 
capacity  of  the  said  water  works." 

The  reason  why  the  defendant  is  bound  to  fur- 
nish this  amount  of  water  throughout  all  time  is 
because  it  was  granted  the  privilege  of  supplying 
the  citizens  with  pure  water — a  privilege  that  any 
water  company  could  enjoy  without  bearing  the 
burden. 

The  proposition,  we  submit,  shocks  one's  sense 
of  justice;  it  is  revolting  to  all  ideas  of  right. 
Were  it  a  private  contract  between  two  indivdu- 
als,  it  would  not  be  enforced,  because  of  being 
unconscionable; — it  would  be  set  aside,  on  the 
ground  that  the  defendant  had  been  overreached, 
and  that  in  conscience  it  ought  not  to  be  bound. 

In  construing  a  contract  or  a  law,  it  is  legiti- 
mate to  look  at  the  results  which  follows  any  par- 
ticular construction,  and  if  one  construction  be  in 
results,  just  and  fair,  and  has  duty  and  compensa- 
tion corresponding  and  adequate;  and  the  other 
is  manifestly  unfair  and  unjust,  having  a  duty  en- 
tirely disproportioned  to  the  compensation  we  may 
rationally  claim  the  first  to  be  the  true  construc- 
tion. 

We  have  shown  above,  the  result  of  the  one  con- 
struction of  the  law  and  the  enormity  of  the  plain- 
tiff's demands.  All  that  the  defendant  claims,  is 


54 

that  furnishing  all  the  water  needed  for  the  extin- 
guishment of  fire  to  the  full  capacity  of  the  said 
water  works,  pending  the  fire,  free  of  charge;  it 
ought  to  receive  a  just  compensation  for  water 
supplied  for  other  municipal  uses,  the  rate  or  price 
to  be  fixed  by  a  fair  Commission. 

What  is  there  in  the  act  referred  to,  that  renders 
this  construction  impossible ;  we  do  not  say  irra- 
tional, for  we  respectfully  submit  that  we  have 
already  shown  this  to  be  the  only  rational  con- 
struction ?  The  benefit  to  the  company  was  not 
so  "great,  that  it  should  perform  this  onerous  duty 
for  the  privilege  granted  it;  for  that  privilege  was 
no  monopoly.  Any  body  of  persons  could  form  a 
water  company  in  competition  and  exercise  the 
same  rights  the  defendant  enjoyed,  without  any 
corresponding  burden. 

Such  considerations  drive  our  opponents  from 
the  field  of  argument;  they  only  can  make  a  stand 
on  the  supposed  letter  of  the  law;  and  to  the  lan- 
guage of  the  Act  we  now  turn. 

Let  us  take  notice  here  that  the  4th  Section 
applies  not  only  to  supplies  of  water  under  Sec- 
tion 1,  but  also  to  supplies  under  Section  3. 
Very  little  reflection,  we  submit,  makes  this  clear. 
Until  the  introduction  of  water  into  the  City  and 
County  by  some  other  person,  the  company  is 
only  bound  to  furnish  to  the  City,  free  of  charge, 
water  for  fires,  during  the  pendency  of  the  same. 


55 

It  may  therefore  charge  the  City  for  water,  for 
other  municipal  uses.  The  price  to  be  charged 
to  the  city,  for  such  water  (with  the  exception  of 
fires,  and  on  the  assumption  that  no  other  person 
has  yet  introduced  water),  is,  of  course,  not 
arbitrary  in  the  company  but  is  to  be  fixed  by 
the  Commission.  The  result  then  is,  that  at 
the  time  now  referred  to,  the  words  in  Section  4, 
viz.:  "  with  the  exception  mentioned  in  Section 
3,"  refer,  merely  and  only,  to  the  case  of  fires. 
We  have  therefore  given  that  language  an  appli- 
cation, and  the  only  application  necessary  to  give 
each  part  of  the  Section  a  legal  effect  and  mean- 
ing. The  result  is  (no  water  having  been  intro- 
duced by  any  other  person)  that  the  Company 
must  furnish  water  for  fires, -during  the  pendency 
thereof,  free  of  charge,  but  may  charge  the  city 
for  water  for  other  municipal  purposes,  and  may 
charge  citizens.  The  price  and  rates  for  both  these 
supplies — to  the  city  and  to  the  citizens — is  to  be 
fixed  by  the  Commission.  In  other  words,  we 
have  three  cases:  Jirst,  a  supply  of  water  to  the 
city  for  fires  free  of  charge;  second,  a"  supply  of 
water  to  the  city  for  other  municipal  purposes  at 
a  rate  or  price  fixed  by  the  Commission;  third,  a 
supply  to  the  citizens,  at  the  same  rate  or  price 
fixed  by  the  Commission.  This  condition  of 
things  might  run  on  forever,  or  it  might  be  changed 
by  the  event  of  water  being  introduced  by  another 
person.  But  what  change  does  that  event  pro- 


56 

duce  ?  The  statute  only  mentions  one,  and  that  one  is 
not  as  to  price,  but  only  as  to  the  quantity  of  water  to  be 
furnished  the  city. 

Instead  of  being  compelled  to  supply  the  City 
with  all  its  wants — for  fires,  free  of  charge,  and 
for  other  municipal  purposes,  at  the  rates  fixed — 
it  is  now  only  compelled  to  furnish  its  quota  or 
proportion  for  either  or  both  purposes.  How 
can  it  be  said  that  this  provision  specifically  pro- 
viding for  charge  of  quantity,  merely,  necessarily 
or  rationally  applies  to  a  change  as  to  place?  It 
is  argued  that  as  after  the  event  referred  to,  as 
well  as  before,  the  water  must  be  furnished  for 
fire,  free  of  charge,  so  it  must  be  furnished  for 
other  municipal  purposes,  free  of  charge.  This 
we  think  a  non  sequitur.  The.  regulation  is  as  to 
quality  merely,  and  if  the  right  to  charge  ^as  in- 
tended to  be  changed,  it  would  not  have  been  left 
to  mere  inference.  So  important  a  matter  would 
have  been  more  plainly  referred  to. 

Xothing  against  the  right  to  charge,  can  be  in- 
ferred from  the  words  in  Section  3,  '•  shall  furnish 
for  fire  and  other  municipal  purposes,"  and,  be- 
cause in  section  1  it  is  made  the  duty  of  the  Com- 
pany to  furnish  citizens,  along  the  line  of  pipe, 
with  water.  Of  course  they  are  to  be  charged. 

But  it  may  be  asked  why  the  Company  was  only 
to  furnish  its  quota  of  water  for  municipal  pur- 
poses, other  than  fires,  if  it  could  charge  for  such 


57 

supply,  and  why  the  city  could  not  continue  to 
take  all  its  water  from  one  company?  The  an- 
swer, we  think,  is  that  as  the  burden,  in  case  of 
fire,  was  to  be  proportionally  borne  by  the  re- 
spective companies,  so  the  right  to  supply  the 
city  for  "  other  municipal  purposes,"  for  a  price, 
was  to  be  proportionally  shared,  otherwise  one 
company  might  be  furnishing  a  large  quota  for  fires, 
free  of  charge  and  yet  get  no  share  of  the  city's 
patronage,  for  other  municipal  purposes.  The 
point  aimed  at  was  exact  equality  between  com- 
panies, and  impartiality  to  all.  The  Ensign  Act, 
itself,  in  Section  7,  shows  the  existence  of  two 
other  companies  at  that  time — the  Mountain  Lake 
and  the  San  Francisco  City  Water  Works.  At 
the  same  time,  Section  3  of  the  Act  of  the  22d  of 
April,  1858,  passed  the  day  before  the  Ensign  Act, 
placed  all  water  companies,  already  incorporated, 
or  that  might  thereafter  be  incorporated,  upon  an 
exact  equality  as  to  "  all  privileges,  immunities 
and  franchises." 

As  before  observed,  the  word  "exception"  in 
Section  4  of  the  Ensign  Act,  clearly  is  limited  to 
the  case  of  fires,  if  there  be  no  water  introduced 
by  another  person,  and  it  must  be  read  exactly  as  if 
it  said,  "  with  the  exception  of  water  for  the  ex- 
tinguishment of  fires."  Having  that  definite 
meaning,  we  cannot  see  how  that  meaning  would 
become  changed  afterwards,  and  how  the  singular 


58 

number  u  exception"  could  become  plural  and  em- 
brace a  new  category  of  a  distinct  character. 

If  we  are  not  right,  another  curious  result  is 
found.  Let  us  suppose  water  to  be  introduced  by 
another  person,  and  let  us  take  the  construction 
claimed — that  thenceforth  the  two  companies 
must  furnish  water  free  of  charge,  in  fair  propor- 
tion, for  all  municipal  purposes.  This  result  is 
produced  by  the  introduction  of  no  particular 
amount  of  water — the  introduction  of  water  from 
the  most  insignificant  spring  would  do.  The  de- 
fendant may  have  been  supplying  many  millions 
of  gallons  per  day,  and  the  new  person  introduces 
only  one  hundred  gallons;  yet  the  result  is,  that 
the  defendant,  instead  of  having  the  city  for  a 
customer  for  water  for  its  general  municipal  pur- 
poses, for  a  reasonable  price,  is  bound  to  supply 
the  city  without  charge,  its  quota,  or  the  propor- 
tion that  so  many  millions  bears  to  one  hundred 
gallons. 

But  these  curious  results  do  not  stop  here,  for 
we  must  take  all  possible  contingencies,  and  con- 
sider what  the  consequences  would  be  if  the  new 
company  should,  after  introducing  its  water,  fail 
and  no  longer  supply  its  quota.  In  fact,  the  com- 
plaint presents  this  very  condition  of  things  as 
having  happened. 

It  is  shown  that  the  San  Francisco  City  Water 
Works  "  ceased  to  exercise  any  of  said  franchises,  and 


59 

the  said  defendant  is  and  since  then  has  been  the 
only  corporation  or  person  engaged  in  introducing 
pure,  fresh  water  into  said  City  and  County  of 
San  Francisco."  What  change  is  here  again  pro- 
duced? After  this  event,  is  it  the  duty  of  the 
defendant  to  continue  only  to  furnish  its  quota,  or 
must  it  now  furnish  all  ?  Or  does  the  defendant 
become  restored  to  its  original  position  ?  It 
would  seem  but  fair,  that  if  by  reason  of  the  in- 
troduction of  water  by  another  person,  the  de- 
fendant was  compelled  to  furnish  its  quota  for  all 
municipal  purposes,  then,  when  the  new  company 
failed  and  the  reason  ceased  that  the  rule  should 
cease,  and  the  defendant  be  restored  or  re-invested 
with  its  original  right  to  charge,  for  all  purposes, 
other  than  fire. 

But  certainly  it  could  not  be  that  after  such 
failure,  more  than  the  established  quota  would 
have  to  be  furnished.  It  could  not  be  that  the 
event  of  the  introduction  of  water  by  another 
company,  would  take  away  from  the  defendant 
its  right  to  charge  for  supplies  for  general  muni- 
cipal purposes  (other  than  fires),  and  require  the 
defendants  to  furnish  its  quota  free  of  charge,  and 
that  as  a  consequence  of  this  and  the  subsequent 
failure  of  that  other  company,  would  arise  new 
obligations  on  the  part  of  the  defendant  to 
furnish  not  only  its  own  quota,  but  also  the 
proportion  of  the  failing  Company  !  Yet  this 
is  the  position  of  the  plaintiff.  The  proposi- 


60 

tion  is  coldly  asserted,  that  whilst  the  San  Fran- 
cisco City  Water  Company  furnished  water,  it  and 
the  defendant  were  obliged  to  supply  to  the  city, 
each  its  quota;  and  now  that  the  City  Water 
Works  has  ceased  to  furnish  its  supply,  the  defen- 
dant must  furnish  what  the  other  ought  to  have 
supplied. 

It  is  no  where  shown  in  the  complaint  what  the 
City  Water  Works  did  supply,  nor  does  the  com- 
plaint furnish  any  data  or  criterion  by  which  we 
can  determinethe  quota  or  proportion,  which  that 
supply  attached  to  each  company.  The  utmost 
that  could  be  claimed,  is  that  that  amount  be- 
come the  standard  or  test  and  would  remain  un- 
changed by  any  subsequent  failure  of  either  com- 
pany. But  this  position  leads  to  another  result 
worthy  of  notice. 

Assuming  that,  prior  to  the  introduction 
of  water  by  the  City  Water  Works,  the  city 
had  the  right  to  take  water,  "  for  the  extinguish- 
ment of  any  fire  or  fires,  during  the  pendency  of 
the  same  free  of  charge,  to  the  full  capacity  of  the 
said  water  works  ;"  and  that  after  such  intoduc- 
tion  by  others  the  amount  to  be  furnished  by  de- 
fendant for  fires  was  limited  to  its  quota  merely  ; 
then  no  matter  how  great  the  fire  or  demand  for 
water  at  such  fire,  all  that  the  defendant  might 
furnish  beyond  its  quota  it  would  be  entitled  to 
charge  for. 


61 

In  other  words,  if  the  City  Water  Works  intro- 
duced as  much  water  as  the  defendant,  each  at 
fires  should  have  furnished  its  quota  only.  If  the 
city  (both  companies  existing)  should  take  from 
the  defendant  more  than  its  quota,  and  let  the 
other  go  free,  it  would  have  to  pay  for  that  excess. 
When,  therefore,  the  City  Water  Works  went  out 
of  existence,  the  city  became  responsible  for  all 
water  used  at  fires,  since  that  time,  beyond  the 
defendants  quota.  How  much  more  rational  then 
are  the  views  and  construction  we  have  urged 
upon  the  Court,  and  how  much  more,  in  result, 
^consonant  with  justice  and  equity  to  both  parties. 

In  a  word,  in  the  beginning  the  defendant 
would  supply,  for  fires,  all  the  water  needed  to  its 
entire  capacity;  but  would  be  entitled  to  charge 
for  supplying  for  other  municipal  purposes  a  fair 
price,  to  be  fixed  by  the  Commission.  When  any 
person  introduced  water,  the  rights  and  obliga- 
tions of  the  parties  were  changed  only  as  to 
quantity.  The  defendant  only  became  bound  to 
furnish  its  quota  for  fires,  free  of  charge,  and 
it  only  had  a  right  to  furnish  its  quota  for 
other  municipal  purposes,  for  which  it  could 
charge,  leaving  the  other  company  its  share  of  the 
city's  patronage.  But  when,  again,  there  remained 
but  the  defendant  alone,  it  would  become  re- 
stored to  its  original  position — it  would  be  bound 
to  furnish  all  necessary  water  for  fires  free  of 


62 

charge,  but,  as  a  corresponding  benefit,  it  could 
charge  for  all  supplies  for  other  municipal 
purposes.  This  we  deem  the  true  construction  of 
the  Ensign  Act. 

In  conclusion,  we  beg  leave  to  submit  that, 
though  the  construction  contended  for  is  the  true 
construction  of  the  Ensign  Act  and  would  accom- 
plish all  the  defendant  seeks,  yet  that  the  defend- 
ant was  never  under  any  of  the  obligations  im- 
posed by  it,  and  that  the  Act  itself  is  unconstitu- 
tional. Should  the  views  here  advanced  be 
maintained,  the  defendant  would  still,  under  the 
Act  of  April  22d.  1858  (Stat.  1858,  page  219,  Sec. 
4)  be  obliged  to  "furnish  water  to  the  extent  of 
their  means,"  to  the  City  and  County,  "in  case  of 
fire,  or  other  great  necessity,  free  of  charge,''  but 
would  be  entitled  to  charge  for  water  for  ordinar}^ 
municipal  uses,  reasonable  rates  to  be  fixed  by  the 
Board  of  Commissioners  under  that  Act.  In 
common  justice,  this  should  be  so,  and  we  re- 
spectfully urge  that  a  re-hearing  should  be  granted, 
that  these  questions  may  be  more  fully  argued  and 
that  justice  may  prevail. 
August,  1873. 

Respectfully  submitted. 

S.  M.  WILSOX, 
J.  P.  HOGE, 

Of  Counsel  for  Defls. 


This  book  is  DUE  on  the  last  date  stamped  below 


.     •  7  f   . 


J*^??dant__an<i' 


oounty  of  San  Fran 
laintiff 
- 


r    y^H 


TD 
225 
S25S7 
1873 


